Lawsuit Aims to Strike Down New Charter Law in Washington State

A coalition of groups with ties to K-12, including the state teachers' union, has filed a lawsuit to wipe out the law that voters in Washington state approved last November to allow charter schools for the first time.

The plaintiffs, who also include the League of Women Voters and an organization representing the state's school administrators, say the law is unconstitutional because it diverts public dollars to private organizations not subject to oversight by the same voters. You can read about the complaint at the Seattle Education blog, which has laid out the details of the suit.

They also say the law hampers the state's ability to adequately fund public schools, a major problem in the state that was articulated by the state Supreme Court's January 2012 decision in McCleary v. State of Washington. It stated in effect that lawmakers were unconstitutionally shortchanging schools.

The lawsuit isn't particularly surprising. Back in February, I wrote about a complaint that the Washington Education Association, the League of Women Voters, and others filed with state Attorney General Bob Ferguson asking him to investigate alleged constitutional problems with the law, which was passed as Initiative 1240 last year by 51 percent of voters. (The electorate had rejected three previous ballot initiatives to allow charters in the state, and before the November vote, Washington was the largest state by population that still prohibited charters.)

But Ferguson demurred when asked to poke and prod the new law, saying that in his view he ultimately had to respect the will of the voters. So without any support from the attorney general, the groups decided to act on their own, as they pledged to do back in the winter.

The public-private split is a big part of the concern by those opposed to the charter law. Although the law requires only nonprofit groups to run charters and contract for services with them, the groups had expressed concern about money going to private groups, even if they are nonprofit in nature. In addition, Superintendent of Public Instruction Randy Dorn has expressed concern that the new charter school governance structure, which includes a nine-member Charter Commission, should ultimately answer to his office, but as of right now it operates separately from the rest of the state education bureaucracy that he runs. I've reached out to Dorn for comment and will update this post if he gets back to me.

UPDATE: When I talked to Dorn today, he said that if his office had a larger budget, he would have leaned towards filing a lawsuit challenging the initiative's constitutionality himself.

"I don't see how they can be public schools if they don't have an elected official over them," he said of charters. (Dorn himself is elected.)

However, he said that the challenge to the law based on decreased funding to traditional public schools might hit a snag, since plaintiffs won't be able to show damages until an actual charter school begins operating and using public dollars that in theory could have been spent on those traditional publics.

But what about how the law is actually being applied? The initiative allowed up to 40 charters to open in the state over a five-year period. What's been the response from school districts? Associated Press reporter Donna Blankinship puts it succinctly:

Remember, though, that a district is one of several entities that can apply to run charters in the state. (UPDATE: I should clarify that Spokane is interested in authorizing charter schools, which is different than applying to operate one.) The Washington State Charter Schools Association, in response to the lawsuit, said in a July 8 statement: "Named one of the strongest charter laws in the nation by the National Alliance for Public Charter Schools, this law was vetted by Washington constitutional law experts and national educators."

It's safe to say that when the state superintendent, the state's largest teachers' union, and the state school administrators' group have problems with the law, and when districts appear largely uninterested in starting charter schools, the traditional K-12 establishment takes a pretty unfavorable view of charters in the state. (Gov. Jay Inslee, a Democrat, also opposed the charter law when he was campaigning for the state's top job last year, by the way, but he's complying with it, as one might expect. His chief of staff, Mary Alice Heuschel, used to be a district superintendent and was a vocal opponent of Initiative 1240, although interestingly she apparently supports charters in principle.)

Of course, these groups failed in their efforts to stop Initiative 1240 in the first place, in the face of support for the proposal from groups like the Bill & Melinda Gates Foundation, which of course was operating in its leaders' backyard during the 2012 campaign, and other well-moneyed charter friends. But what will charter opponents' fate be in their second go-round of fighting the law?

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